Arizona Trusts Legal Questions

Homes don't go to probate, wills go to probate, or if no will, the estate is administered by the Court (although it might be called something different than administration n your parents' state).  The home could pass directly if title was held in a certain way (e.g. life estate for parents, remainder to children) but that is unlikely.  Most likely your parents owned the home as tenants by the entirety, meaning that the latest to pass owned it completely, and it will pass according to that person's will (which must be probated) or, if no will, by the laws of intestacy of their state.  Usually, those laws will provide that the property goes equally to the children.  However, you may need to institute a court proceeding to confirm it and confirm title.  If the chilldren are not agreed about what to do with the property, it can be partitioned, either by agreement of the children (e.g. 3 buy out the share of the 4th) or in a court proceeding, which would be expensive and time consuming.... Read More

Good Morning: There is a lot of nuance in your question.  Did your mother-in-law establish and document this debt with her son on the one house?  Does he have possession of the property?  Is there any documentation in the Trust that dictates the son must pay for the home or the gift goes to someone else (in this case possibly the other brother)? If there is no language in the Trust or documentation from the mother that the son must purchase the residence from the trust, then he will likely take the property per the terms of the trust.  In short, the terms of the Trust will dictate what happens to the property in it once the grantor (in this case, your mother-in-law) dies.  If the Trust terms require the son(s) to purchase the home or it goes to someone else or the successor trustee has to sell it, then that's what will happen.  If the trust is unclear on this point and it's important to your mother-in-law, I recommend she change the terms of the trust to ensure it includes this stipulation and what will happen should the son not purchase the property from the trust.  This can be accomplished through an amendment (not recommended) or a restatement of the trust (recommended). Best wishes!... Read More

Good Morning: Based on the limited information provided, you can set up a special needs/supplemental needs trust that can pay out limited amounts from an account to your son.  However, you have to make the trust the owner of the account with the bank and name a trustee (not your son) who will control the funds and pay the money out in a way that you specify in the trust when you set it up.  Please bear in mind that you'll need to work with the bank directly to ensure they will allow the trust to own the account and the trustee access to it.  Every bank has its own forms & procedures for account ownership & access.... Read More

Hi!  There are generally 2 main options for revising the terms of a trust: an amendment or a restatement (see below).  The restatement is the most complete and secure (i.e., least likely to be successfully contested in court) method of revising a trust to change how beneficiaries can access your things when you're gone.   A Trust Amendment revises the terms and conditions of a trust. Trust Amendments are generally only used if certain provisions of a trust agreement have to be modified, but the rest of the provisions of the trust remain unchanged. Minor changes may include updating a beneficiary’s name, changes due to marriage or divorce, adding or removing simple gifts, or naming a different trustee. A Trust Restatement completely replaces all the provisions of the original revocable living trust  with new provisions that meet the current goals of the creator of the trust. A Trust Restatement is usually recommended if the basic goals of forming the trust have changed, or if all or main provisions of the trust agreement need to be changed. Changes in the number of beneficiaries, changes in the way in which the funds or assets are to be distributed, or compliance with new laws are a few of the significant changes that may require a restatement. A Trust Restatement may also be recommended if the trust has already been amended several times and consolidating all changes in a clear manner will help provide clarity and avoid confusion. A Trust Restatement may also make sense if federal and state estate tax laws change, or new administration laws are enacted. Amendment vs Restatement While an amendment makes sense for minor changes, a restatement may be vital if major changes are made. There is no specific rule regarding when you should use a restatement or how many times a trust can be amended before it needs to be restated. Handwritten changes may not be acceptable in some states or might be considered invalid.... Read More

Hi.  Making a change to your trust to alter the ability of your beneficiaries to withdraw all the money from your bank account in a lump sum is actually more involved than you might think.  The best way to accomplish this goal would be to contact an estate planning attorney and create a "restatement" of your trust.  The restatement is the most complete and secure (i.e., least likely to be successfully contested in court) method of changing how you want your beneficiaries to get access to your things when you're gone.... Read More

The answer depends on what type of change it is, and the language of the trust.  If there is a provision in the  trust that specifically allows you to amend or revise it, you may be able to.  I would make a copy of the trust, write the change on that, and sign and date it with a notary or witness.  If the change is substantive (for example, omitting someone from the trust or changing distributions somehow, it 's probably worth paying a lawyer.  ... Read More

As personal representative, you have the ability to transfer probate property of the person who died.  Probate property is only that property that was owned solely by that person (no joint owner or not owned by a trust) and did not have a beneficiary or pay-on-death designation to another person.  If the real estate subject to the mortgage was owned solely by the person who died, it is probate property.  If the person left no Will, the law of intestacy applies.  Assets go to a surviving spouse, children, parents, siblings, nieces and nephews, etc. depending on the closest relatives that survived that person.  Nolo.com has a good summary of Arizona intestacy law.  It then is your responsibility to execute a deed for the real estate to those who are entitled to it under the law of intestacy.  This person or persons takes the real estate subject to the mortgage.  The mortgage agreement may require that the loan be paid in full upon tranfer of ownership, but, in most cases, there is an exception for property inherited by relative if the payments are kept up.  You have the authority to request the mortgage document as the personal representative, and to negotiate with the bank on behalf of the estate.  If the estate has any funds, it should keep current with the mortgage payments as well as other expenses for the real estate, such as insurance.  I don't know all of the details of this situation, but it sounds like you need to determine who is entitled to this property and then arrange for a professional to draft a deed for it.  Also keep in mind that there is a creditor period for estate when any creditors can come forward to present claims, so you may not want to transfer this real estate if the creditor period has not ended.  In most states, the creditor period is four months starting when the personal representative is appointed.   ... Read More

You should be able to get a copy of the will at the county office in which your mother died and/or resided.  If she disinherited you and did not provide for your children, then there is likely nothing you can do about it.  You can always challenge a will, but the circumstances have to be such that she was not of sound mind when she wrote it, or that she was somehow under duress or undue influence when she disinherited you.... Read More

This is very odd. You could be going on a long and fruitless search. Usually a beneficiary of a Trust is given the access information, or instruction about it. So you may just have to wait. You need to know at least who the Trustee is (the person designated to carry out the instructions in the Trust). Without that information, you are unlikely to ever find this fund. It is also the rare Trust that terminates (pays out) at the age of 18. Without a copy of the Trust document, there is no way to know if you have any rights to its assets. If you do not have a copy of the Trust documents, you cannot prove to any bank or financial institution that you have any right of access to information or proceeds. Financial institutions must protect the privacy of their account holders. Only if the bank is the Trustee is it going to be worthwhile for you to approach a bank about the funds and then only the bank Trust Department can help you. (Going from bank to bank asking if they have anything for you is not likely to get you any information at all. You are more likely to fall under suspicion than be helped.) In the meantime, you can try to: Find your grandparents and ask them for the information you need. Ask family, friends, colleagues and others. Don't explain more than that you want to get in touch with your grandparents. Offer to leave your address, phone and email information so that your grandparents can contact you, or they can have someone else do it. If you know or can locate the attorney who drew up the Trust, you can ask if he or she will send word to your grandparents or the Trustee and ask them to contact you. In the spirit of considering all possibilities, I am sorry to have to ask this question: Is it possible that your grandparents did not leave contact information because there is no Trust fund; or maybe the Trust no longer has funds in it? I obviously do not have the entire story, so it is very difficult to advise you. I hope these ideas will help. To your success, Gale Allison, Principal AttorneyThe Allison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/GaleAllison ... Read More